Watson v State of NSW

[2021] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation:

Watson v State of NSW [2021] NSWSC 765

Hearing dates:

25 June 2021

Date of orders:

25 June 2021

Decision date:

25 June 2021

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

For the reasons given I thus order that the extension of time which Mr Watson seeks for the commencement of the proceedings be granted and accordingly, that he be given leave to commence the proceedings and to file his statement of claim.

Catchwords:

CIVIL PROCEDURE – Time – Extension of time – Where extension of time to bring action is sought – leave granted

LIMITATION OF ACTIONS – Personal injury – Where delay in onset of symptoms leads to delay in bringing action

NEGLIGENCE – Psychiatric injury

STATUTORY INTERPRETATION – whether limitation provisions of Motor Accidents Compensation Act1999 or Limitation Act 1969 apply to application– Definition of ‘motor vehicle’ – Limitation Act applies

Legislation Cited:

Limitation Act 1969 (NSW), ss 50C, 50D, 62A, 62B, Div 6 Pt 2

Motor Accidents Compensation Act1999 (NSW), ss 3, 3A, 3B, 109, 134, Ch 4, 5, Sch 5 cl 9

Road Transport Act 2013 (NSW), s 3

Road Transport (General) Act 2005 (NSW)

Transport Administration Act 1988 (NSW), s 121

Cases Cited:

Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35

Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53

Sheehan v SRA; Wicks v SRA [2009] NSWCA 261

Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22

Category:

Principal judgment

Parties:

Mr Watson (Plaintiff)
State of NSW (Defendant)

Representation:

Counsel:
Mr P Mooney SC (Plaintiff)

Solicitors:
Steve Masselos & Co. Pty Limited (Plaintiff)
McCabe Curwood Pty Ltd (Defendant)

File Number(s):

2021/37198

Judgment

1. Mr Watson sought an order under s 62A of the Limitation Act 1969 (NSW) extending the 12 year long stop limitation period and in the alternative, leave to commence the proceedings under s 109 of the Motor Accidents Compensation Act1999 (NSW), together with leave to file a proposed statement of claim.

2. The orders sought were finally not opposed by the State, in circumstances where on Mr Watson’s case, on 31 January 2003, during the course of his employment by the New South Wales Fire Brigade as a firefighter, he had to attend a train derailment south of Waterfall railway station, in which a number of persons were killed and 42 others injured.

3. What Mr Wood seeks to claim includes that:

1. the derailment was caused by the negligence of the State Rail Authority;

2. it owed him a duty to take reasonable care not to cause him mental harm, knowing that rescuers such as he would attend the scene of such a derailment;

3. the SRA was in control both of the operation of the train and the procedures to be followed, in the event of a derailment;

4. it was reasonably foreseeable that:

1. a rescuer attending a derailment which resulted from SRA negligence, might suffer recognisable psychiatric injury as a result of experiences at the scene, where there might be many serious casualties; and

2. what a rescuer would see, hear, be called on to undertake to ease the suffering of others and to take them to safety, might cause a person of normal fortitude to develop a recognised psychiatric injury.

5. the duty required the SRA to take precautions against this risk of mental harm materialising;

6. the risk was foreseeable, having been actually known, or ought to have been known by the defendant and was not insignificant;

7. a reasonable person in the SRA’s position would have taken available precautions; and

8. as a result of the negligence, Mr Wood had suffered severe psychological injury, trauma, depression and PTSD.

4. There was no issue that the SRA was dissolved in December 2003 and that the State is responsible for its liabilities.

5. There was affidavit evidence from Mr Watson, his solicitor Mr Masselos, to which was annexed the Final Report of the Special Inquiry into the Waterfall Rail Accident conducted by the Hon Peter McInerney QC and a report of the psychiatrist Professor Phillips.

6. Mr Watson’s evidence was that he was one of the first responders on the scene, after having worked a busy night shift. He worked there in confronting and difficult circumstances, in close proximity to live fallen power lines, rendering aid to injured victims and moving bodies and not returning home until about 4pm. While he suffered psychological symptoms in the immediate aftermath, including nightmares and flashbacks, he took no time off work and sought no treatment, having taken advice offered by the Employee Assistance Program, that he should think about the accident like a scary movie and the effects would diminish over time.

7. Mr Watson’s symptoms subsided, although he did require counselling for problems controlling his anger, about a year later, but no connection was then made with the Waterfall accident. He was able to perform unrestricted work as a firefighter, for some 15 years, albeit at times having to deal with intrusive thoughts and nightmares about the accident, which he accepted as being part and parcel of his work as a firefighter and which he was able to suppress.

8. In that time Mr Watson sought no treatment, while others involved had pursued claims for mental harm, some of them in cases brought out of time: Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales (2010) 241 CLR 60; [2010] HCA 22.

9. In September 2018 he had attended a training session in the course of his employment, which unbeknownst to him concerned safety changes implemented in response to the inquiry into the Waterfall rail accident which had been found to have been caused by the acts and omissions of the SRA.

10. Graphic news photographs were then displayed on screen, retriggering the adverse effect which his involvement had had on Mr Watson. Mr Watson’s unchallenged evidence was that he was immediately overwhelmed, suffering debilitating psychological symptoms he had not previously experienced. They were so severe that he has since been unable to work; has been diagnosed to be suffering post-traumatic stress disorder; has been hospitalised and undergone treatment for PTSD. He remains under the care of Dr Pakula for the ongoing symptoms which he continues to suffer and in February 2021 was medically retired from Fire and Rescue NSW as being totally and permanently incapacitated.

11. It was only in October 2020 after he engaged a new firm of solicitors, that he was advised that he might have a claim against the SRA in negligence.

The Motor Accidents Compensation Act 1999

12. The Motor Accidents Compensation Act generally applies “in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”, in specified circumstances: s 3A. Section 3B restricts claims to vehicles which have motor accident insurance, but that is not relevant in this case, because it was inserted only in 2006 and had no retrospective effect: schedule 5 cl 19.

13. In s 3 of that Act “motor vehicle” is defined to mean “a motor vehicle or trailer within the meaning of the Road Transport Act2013 (NSW).” There the term is defined in s 3 to mean “a vehicle that is built to be propelled by a motor that forms part of the vehicle”. That definition would apply to a train.

14. The term “vehicle”, is also defined in s 3 of the Road Transport Act to mean:

(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

(b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or

(c) any other description of vehicle prescribed by the statutory rules.

15. A train would not fall within the definition of “vehicle”, but that is a definition which was not adopted by the Motor Accidents Compensation Act. Thus, in Sheehan v SRA; Wicks v SRA Although it was not debated it would seem, it was observed at [84] that:

“84…Although it was not debated it would seem the Waterfall derailment is classified as a “motor accident” because the train was a motor vehicle, being a vehicle built to be propelled by a motor that forms part of the vehicle: Road Transport (General) Act 2005, s 3; applied by virtue of s 3, Motor Accidents Compensation Act 1999 (the “MAC” Act) and the deaths or injuries caused by its derailment during its operation were as a result of and caused during either the driving of the vehicle, or the vehicle running out of control: definition of “motor accident”, s 3, MAC Act.”

16. There, however, no reference was made to the definition of “vehicle” in the Road Transport (General) Act 2005 (NSW), or to s 121 of the Transport Administration Act1988 (NSW).

17. Section 121(1) of the Transport Administration Act provides that Chapter 5 (Award of damages) of the Motor Accidents Compensation Act applies to “an award of damages which relates to the death of or bodily injury to a person caused by or arising out of a public transport accident”. There is no issue that the Waterfall accident falls into the definition of that term in s 121(3).

18. Section 121 did not, however, refer to the provisions of Chapter 4 of the Motor Accidents Compensation Act, in which a limitation period is provided. Section 109 of the Motor Accidents Compensation Act there imposes a 3-year time limit, after the date of a “motor accident”, except with leave of the Court. That section appears in Chapter 4, which provides for the making of claims.

19. A “motor accident” is defined in s 3 of the Motor Accidents Compensation Act to mean “an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle’s running out of control, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

20. If s 109 of the Motor Accidents Compensation Act does not apply, then the limitation period is governed by ss 50C and 62A of the Limitation Act. Mr Watson’s application was pressed on those provisions. Whether they or s 109 apply must be resolved. Both give the Court a discretion to grant leave to bring proceedings out of time, but on different terms. Section 109(3) provides:

(3) The leave of the court must not be granted unless—

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.

21. There is no issue that in January 2003 the maximum damages for non-economic loss under s 134 was $309,000, with the result that the Court must be satisfied that Mr Walton’s total damages would exceed $77,250. There was no issue that on the evidence the Court could have the necessary satisfaction and that there has also been a full and satisfactory explanation given for the delay, of which delay in onset of symptoms is an example: Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [7].

22. I consider that s 109 of the Motor Accidents Compensation Act does not apply to Mr Watson’s application. That is because a train is not a “motor vehicle” as defined in s 3, despite the adoption of the definition in s 3 of the Road Transport Act. The Road Transport Act definition of that term must be understood in accordance with the definition of ‘vehicle’ in s 3. Unless the term “motor vehicle” in the Motor Accidents Compensation Act is also read in light of that definition, the statutory intention, that the term “motor vehicle” in that Act have the same meaning as it has in the Road Transport Act, cannot be achieved.

23. A train thus does not fall within the Motor Accidents Compensation Act. That explains why the provisions made in s 121 of the Transport Administration Act were necessary.

The Limitation Act

24. Section 50C(1) provides:

50C Limitation period for personal injury actions

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

25. Section 62A(2) empowers the Court “if it decides that it is just and reasonable to do so” to extend the 12 year long-stop limitation period “for such period as the court determines, but not so as to extend that period beyond the period of 3 years after the date on which the cause of action is discoverable (within the meaning of Division 6 of Part 2) by the plaintiff.”

26. Section 50D is thus relevant, providing:

50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.

27. Mr Watson’s case, that the date of discovery was not before 20 September 2018, when he suffered severe and incapacitating sequalae, less than 3 years ago was not put in issue. The 3-year post discoverability period has thus not yet expired.

28. That conclusion rests on opinions expressed by the psychiatrist Professor Phillips about the retriggering incident which then occurred and the delayed onset of post-traumatic stress disorder which then resulted for Mr Watson. Up to that time he had been able to minimise his trauma induced symptoms to the point where he could not recognise his condition and so did not seek any treatment.

29. Up to that time he had also not suffered any economic loss and could not have satisfied other requirements of the Motor Accidents Compensation Act. It was only later, in October 2020, that he received advice from the second firm of solicitors who he consulted, that he had a claim under that legislative scheme. That satisfied the two aspects of s 50C, in relation to an applicant having both medical and legal advice: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 at [42].

30. Even if it were concluded that an extension of the 12 year long stop limitation period was required under s 62A, the considerations arising under s 62B, would result in the grant of the extension.

31. It appears that Mr Watson has suffered a serious injury. The reasons why he only now pursues a claim have been revealed and are entirely understandable, in the circumstances in which he found himself. Prejudice was not suggested and the relief sought was not opposed.

32. In the result I was satisfied that the orders sought had to be made.

Costs

33. It was common ground that there should be no order made as to costs.

Orders

34. For the reasons given I thus order that the extension of time which Mr Watson seeks for the commencement of the proceedings be granted and accordingly, that he be given leave to commence the proceedings and to file his statement of claim

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Decision last updated: 25 June 2021